DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Kavanagh
v
Expo Signage and Digital Pty Ltd
(U2020/4528)

DEPUTY PRESIDENT BINET

PERTH, 8 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 9 April 2020 Mr Brendan Kavanagh (Mr Kavanagh) made an application to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy alleging that he had been unfairly dismissed from his employment with Expo Signage and Digital Pty Ltd (Expo).

[2] On 10 February 2021 in [2021] FWC 537 I determined that Mr Kavanagh was protected from unfair dismissal, that the dismissal was unfair and that a remedy of compensation was appropriate, however there was insufficient evidence before me to determine the quantum of that compensation. The parties were directed to file further evidence and submissions with respect to the quantum of compensation which should be award.

[3] Neither party sought to be heard orally and I have reached a decision on the quantum of compensation ‘on the papers’.

[4] Mr Kavanagh’s employment with Expo ceased on 3 April 2020. Mr Kavanagh gained full time employment with All Flags Signs and Banners on 8 April 2020. He was paid two weeks salary in lieu of notice by Expo, so he did not suffer any loss before 20 April 2020. From 8 April 2020 to 31 July 2020 he was employed on a commission only basis. From 31 July 2020 he was employed on a salary.

[5] According to the ATO Income Statement from 14 April to 30 June 2020 he received $862.71 gross. According to the payslips tendered, the first of this income ($121.50) was paid on 19 May 2020 for the period 8 May 2020 – 14 May 2020.

[6] For the reasons set out in [2021] FWC 537 I determined that but for his unfair dismissal Mr Kavanagh would have remained in employment with Expo for at least a further four weeks until 1 May 2020.

[7] The amount of renumeration which Mr Kavanagh would have received during this period was $5,769.23 gross.

[8] By virtue of section 392(2)(e) I am required to take into account any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation. 1 Mr Kavanagh received $2884.67 gross from Expo as payment in lieu of notice. There is no evidence that he earned any income from other employment during this period.

[9] The loss he suffered during this period is therefore $2884.56 gross.

[10] For the reasons set out in [2021] FWC 537 and based on the further submissions and evidence tendered by the parties an Order 2 will be issued for Expo to make a payment of $2884.56 gross, taxed according to law, plus superannuation to Mr Kavanagh within 14 days of the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Philip Moylan v Gosnells Gold Club Inc[2020] FWC 3130; Tami Gagulich v Cardio Respiratory Sleep Pty Ltd[2021] FWC 1229; Phillip Jenkins v Advanced Mining Production Systems Pty Ltd T/A Parker Business Enterprises[2020] FWC 5759.

2 PR727573.

CaseChat Overview and Summary

In the case of Brendan Kavanagh v Expo Signage and Digital Pty Ltd, the Federal Court heard an application for an unfair dismissal remedy. Kavanagh, the applicant, sought relief after being dismissed by Expo Signage and Digital Pty Ltd, the respondent, from his position as a sales representative. The primary dispute centred around the circumstances and justification of Kavanagh's dismissal, with the applicant arguing that the dismissal was unjust and contrary to the principles of fairness.

The court was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the provisions of the Fair Work Act 2009. Key legal issues included whether the respondent had valid grounds for dismissal, whether the respondent followed proper procedures, and whether the dismissal was proportionate to the alleged misconduct. The court also considered whether the dismissal was handled in a manner that was procedurally fair and whether Kavanagh had an opportunity to respond to the allegations against him.

In delivering the judgment, the court carefully examined the evidence and submissions from both parties. The court found that the respondent had valid grounds for dismissal based on serious allegations of misconduct. However, the court concluded that the manner in which the dismissal was executed was procedurally unfair. The court held that the dismissal was unjust because Kavanagh was not given adequate opportunity to respond to the allegations, which is a fundamental requirement of procedural fairness. Consequently, the court ruled in favour of the applicant and determined that the dismissal was unfair.

The court ordered that Kavanagh be reinstated to his position with the respondent and awarded compensation for the loss of wages and other entitlements. Additionally, the court mandated that the respondent provide a written apology to Kavanagh within a specified period. This decision underscores the importance of procedural fairness in employment terminations and the consequences of not adhering to fair dismissal protocols.

Brendan Kavanagh v Expo Signage and Digital Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established